Judges Grimke and Bay were of opinion, that the motion
for the prohibition ought to be refused. They considered
the act in question as authorized by the fundamental principles
of society. That the authority of the state, as laid
down by eminent civilians and jurists, to appropriate a
portion of the soil of every country for public roads and
highways, was one of the original rights of sovereignty, retained
by the supreme power of every community at its
formation, and like the power of laying on, and collecting
taxes, paramount to all private rights; or in other words,
that all private rights were held and enjoyed, subject to
this condition.

That it was by the means of these roads and highways,
that the citizens of the country had a convenient communication
from one extremity of it to another; and between
the intermediate towns and public places in the interior of
it. It was along them also, that the citizens assembled with
convenience and despatch in times of danger and alarm,
for defense and protection; and along these, the productions
of the country were conveyed to a market, and the
produce of the soil was rendered valuable. It was therefore
a matter of primary importance, that the power of making
and laying off these avenues of great public convenience,
and keeping them in repair, should for ever be vested in
the supreme legislative body of every nation and commonwealth
on earth. That the legislature of South Carolina,
had exercised this power and authority, from the first establishment
of civil government in it, to the present day.
They therefore considered it, as much a part of the common
law of South Carolina, as any other part of that great
and valuable system.

That it was neither against magna charta, nor the state
constitution, but part of the lex terrae, which both meant
to defend and protect. The so much celebrated magna
charta of Great Britain, was not a concession of rights and
privileges, which had no previous existence; but a restoration,
and confirmation of those, which had been usurped, or
had fallen into disuse. It was therefore only declaratory of
the well known and established laws of the kingdom.

So, in like manner, the 2d section of the 9th article of
our state constitution, confirms all the before-mentioned
principles. It was not declaratory of any new law, but confirmed
all the ancient rights and principles, which had
been in use in the state, with the additional security, that
no bills of attainder, nor ex post facto laws, or laws impairing
the obligation of contracts, should ever be passed in
the state. They were therefore of opinion, that so far from
interfering with, or contradicting this high and important
privilege of the legislature, in laying off highways, they
both confirmed and secured it; consequently that none of
the cases relied on by the counsel in favour of this motion,
had the least tendency to contradict or overturn these
principles. They were also of opinion, that the act of the
legislature was constitutional and binding, and that the city
council were well warranted in appointing the commissioners
to go on and finish the street in contemplation. As
to the assessments on the lot owners, that point seems to
have been given up in the argument, as they relied principally
on the compensation for the freehold: and as to the
mode of collecting them, it appears to be in conformity to
the old usage and customs of levying and collecting assessments,
for the building and repairing of bridges, prescribed
by the ancient road acts, a century ago. Upon the
whole, they were of opinion, that there were no grounds
for the prohibition, and that the rule should be discharged.

Burke, J. admitted the power of the state on great and
necessary occasions, to appropriate a portion of the soil of
the country, for public uses and national purposes; but
was of opinion that there should be a fair compensation
made to the private individual, for the loss he might sustain by
it, to be ascertained by a jury of the country.

Waties, concurred in opinion with Burke, but went
more fully into his reasons. He admitted the right of the
state to take the property of an individual, for purposes of
public necessity, or even for public utility; but in exercising
this power, it was essential to its validity, that a full compensation
should be provided at the time, for every injury that the
individual might suffer. This appeared to him, he said, to
be the construction given by the writers quoted on the part
of defendant's counsel, to shew the lawfulness of this
power. Vattel, b. 1. c. 20. s. 244. expressly says, that "justice
demands, that the individual should be recompensed;"
and Bynkershock, who was also quoted, explicitly declares
the same thing. The common law of England, which has
also recognised this power, does it always with the same
restriction. "The legislature," says Mr. Blackstone, "may order
a new road to be made through the private grounds
of an individual, and may compel him to acquiesce in it.
But how does it compel him? not by stripping him of his
property, in an arbitrary manner, but by giving him a full
indemnification or equivalent for it. And even this is an
exertion of power which it indulges with great caution."
Which is evident in the act of parliament for making a new
road from Black Fryer's Bridge, across St. George's Fields.
The corporation of London is thereby authorized and directed,
to treat with the owners of lands that might be
taken away by the road, for the purchase of the same; and
in case of refusal to treat for the value of the lands taken,
the same is to be assessed by a jury; which he said, had a
strong similitude to the present case. The road in that
case, most probably in some cases enhanced the value of
the lands through which it passed, and therefore was productive
of benefit to the owners. But parliament thought
proper, by the sacred principle of compensation, to provide for
any possible injury. The rights of our citizens are not less
valuable than those of the people of England: we have besides
a constitution, which limits and controls the power of
the legislature, the 9th article of which, declares, that no
freeman shall be devested of his property, but by the judgment
of his peers, or the law of the land. On a former occasion,
(in the case of the City Corporation against Zylstra,) he
said, he had gone into a long investigation of the technical
import of the words lex terrae, and therefore should only
state here, that they meant the common law, and ancient statutes
down to the time of Edward II. which were considered
as part of the common law. This was the true construction
given to them by all the commentators on magna charta,
from whence they were adopted by our constitution. If the
lex terrae meant any law which the legislature might pass,
then the legislature would be authorized by the constitution,
to destroy the right, which the constitution had expressly
declared, should for ever be inviolably preserved.
This is too absurd a construction to be the true one. He
said he understood, therefore, the constitution to mean,
that no freeman shall be deprived of his property, but by
such means as are authorized by the ancient common law of
the land. According to this construction, the right of property
is held under the constitution, and not at the will of
the legislature. In what way, then, does the common law
authorize the power of taking private property for public
uses? "by providing," says Mr. Blackstone, "a full indemnification
for it." This is the condition on which the valid
exercise of this power depends. But the law under consideration
does not provide any indemnification, nor does it
make the public responsible in any way for any injury
which might be done to the plaintiffs. It has not therefore
complied with the terms of the common law, and is not
conformable to the constitution. It was urged, however,
that no injury could arise to any of the parties complaining,
and therefore it was not necessary that the legislature
should provide any indemnification. This fact may be so;
but it makes no difference in the case. Was the legislature
itself to be the judge of that fact? Can it prescribe what
terms it pleases for the individual, and determine either
the measure of compensation for property taken, or that
none at all is due? This would be attributing to it a power
which belongs only to despots. And yet even the greatest
despots have not always felt themselves at liberty to exercise
it in this way. De Tott, in his memoirs of the Turkish
government, mentions a remarkable instance to the contrary,
which it may not be amiss to relate on this occasion.
The sultan Mustapha being desirous of building and endowing
a new mosque, fixed upon a spot, in the city of
Constantinople, which belonged to a number of individuals.
He treated with all of them, for the purchase of their
parts, and they all willingly complied with his wishes, except
a Jew, who owned a small house on the place, and
who refused to give it up. A considerable price was offered
him, but he resisted the most tempting offers. His partiality
for the spot, or his obstinacy, was stronger than his avarice.
All the city was astonished at his rashness, and expected
every hour to see his house demolished, and his
head upon a pole. But what was the conduct of the sultan?
of one who was the absolute master of the lives of millions?
He consulted his mufti, who answered that private property
was sacred, that the laws of the prophet forbade his
taking it absolutely, but he might compel the Jew to lease
it to him, as long as he pleased, at a full rent. The sultan
submitted to the law. He observed, that we might learn
two things from this example of a despot: 1st. That the
sovereign power, although absolute, is not at liberty to take
away private property and decide, at its own discretion,
that no compensation is due; 2d. That the principle of indemnification
is deeply founded in natural justice. It was
further said in this case, If any injury is done, the parties
might have recourse to a court and jury for redress. But
whom could they sue? not the commissioners, not the city
council; for they would justify under the act. Whom then?
why, no one. But suppose they could sue, what would be
the nature of the action? It could not be founded on contract,
for there was none. It must then be on a tort; it must
be an action of trespass, in which the jury would give a
reparation in damages. Is not this acknowledging that the
act of the legislature is a tortious act? and can any thing
prove more fully, the arbitrary character of the act, than
this?

He said, it was painful to him to be obliged to question
the exercise of any legislative power, but he was sworn to
support the constitution, and this was the most important
of all the duties which were incumbent on the judges. On
the faithful performance of this high duty would depend
the integrity and duration of our government. If the legislature
is permitted to exercise other rules than those ordained
by the constitution, and if innovations are suffered
to acquire the sanction of time and practice, the rights of
the people will soon become dependent on legislative will,
and the constitution have no more obligation than an obsolete
law. But if this court does its duty, in giving to the
constitution an overruling operation over every act of the
legislature which is inconsistent with it, the people will
then have an independent security for their rights, which
may render them perpetual. In exercising this high authority,
the judges claim no judicial supremacy; they are
only the administrators of the public will. If an act of the
legislature is held void, it is not because the judges have
any control over the legislative power, but because the act
is forbidden by the constitution, and because the will of
the people, which is therein declared, is paramount to that
of their representatives, expressed in any law. As the act
under consideration appeared to him to be repugnant to
this high will, he was bound to say, that it ought not to
have any operation, and that the prohibition should be
granted.

As the judges were equally divided in opinion in this
case, the applicants took nothing by their motion.